While transferring the trial of the gangrape and murder of the minor girl in Kathua out of Jammu & Kashmir, to be conducted by the Pathankot District and Sessions Judge, the Supreme Court on Monday underlined that “fear and fair trial are contradictory in terms and they cannot be allowed to coexist”.

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Section 406 of the Code of Criminal Procedure, 1973 (Power of Supreme Court to transfer cases and appeals) says that the Supreme Court may, “for the ends of justice,… direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court”.

The Supreme Court also has the power, under Article 139A(2) of the Constitution, to transfer cases from one High Court to another and, under Section 25 of the Civil Procedure Code, 1908, from a High Court or other civil court in one state to a High Court or other civil court in another state.

The apex court has stressed that it “has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court”. On July 19, 2016, a five-judge Constitution Bench of the court ruled that it also had the power to transfer civil and criminal cases pending in trial courts of Jammu and Kashmir to other states, the special status of J&K notwithstanding.

“The provisions of Articles 32 (constitutional remedies for enforcement of fundamental rights), 136 (special leave to appeal by the Supreme Court) and 142 (enforcement of decrees and orders of Supreme Court) are… wide enough to empower this Court to direct such transfer in appropriate situations, no matter Central Code of Civil and Criminal Procedures do not extend to the State nor do the State Codes of Civil and Criminal Procedure contain any provision that empowers this court to transfer cases,” the Bench led by then Chief Justice of India T S Thakur had ruled. (Anita Kushwaha vs Pushap Sudan, with other petitions)

Some well known instances of the transfer of criminal cases from one court to another in the past:

Jayalalithaa case
Madras High Court framed charges against Jayalalithaa in a disproportionate assets matter in 1997. On February 8, 2003, with Jayalalithaa back as Chief Minister, the DMK appealed for transfer of the case outside Tamil Nadu. On November 18, 2003, the top court moved the trial to a Special Court in Bangalore, observing that a “fair trial was not going on” in Chennai.

Best Bakery, Bilkis Bano cases
On April 12, 2004, the SC moved the trial of the Best Bakery case — in which 14 people were burnt alive in Vadodara on March 1, 2002, during the Gujarat riots — to Mumbai from Gujarat. The Supreme Court also shifted the trial of the Bilkis Yakub Rasool gangrape case, again from the 2002 Gujarat riots, from Ahmedabad to Mumbai on the apprehensions of the victim and the CBI that witnesses could come to harm if the trial was held in Gujarat.

Sohrabuddin Sheikh case
On September 27, 2012, the SC transferred the Sohrabuddin Sheikh fake encounter case, in which BJP president Amit Shah was then an accused, from Gujarat to Mumbai, fearing that a free and fair trial was not possible in Gujarat. On the same day, the court rejected CBI’s plea to cancel Shah’s bail, and permitted him to enter Gujarat ahead of elections there.

Kanchi Shankaracharya case
After the manager of the Varadarajaperumal temple in Kancheepuram, Tamil Nadu, was killed on the temple premises on September 3, 2004, Shankaracharya Jayendra Saraswathi was among six people charged with murder. In 2005, the SC shifted the trial from a Chengalpet court to Puducherry after Saraswathi pleaded that the accused “would not get a free and fair trial” in Tamil Nadu.